David Abbott & Ors v Ministry of Defence

A Group Litigation Order is discretionary. The existence of numerous claims and some common or related issues is not enough. The court must also assess access to justice, the likely practical effect of binding judgments, the degree of commonality, and whether the order will deliver real procedural or costs benefits.

Where claims are highly fact-sensitive, lead-case findings may have limited utility and may not dispose of most claims. A proposed GLO may therefore be refused where it would stay or delay other claims, particularly when the applicant has failed to comply with Practice Direction 19B and has not co-ordinated the wider claimant group.

The claimants sought a Group Litigation Order for thousands of military noise-induced hearing loss claims against the Ministry of Defence. The application was supported by the defendant but opposed by solicitors representing other claimants.

The court considered whether the threshold requirements for a GLO under Civil Procedure Rules 1998 rules 19.21 and 19.22 were met. The central issues were compliance with Practice Direction 19B, the effect of binding judgments in test claims, access to justice, and the practical utility of group management for claims said to involve diverse factual circumstances.

1. Application dismissed. The claimants failed to establish that the threshold requirements for a GLO were met.
2. The court accepted that the number of claims was sufficient, that consolidation and representative proceedings were unavailable, and that this type of personal injury litigation could in principle be suitable for a GLO. Those matters did not determine whether the discretion should be exercised.
3. The proposed applicant had substantially failed to comply with Practice Direction 19B. It had not consulted the Law Society’s Multi Party Action Information Service, formed an appropriate solicitors’ group, agreed a lead-solicitor structure, or defined the relationship between participating firms. A GLO would consequently restrict the access to justice of thousands of claimants represented by other firms, many of whose claims were advanced or capable of settlement.
4. The court generally agreed with the Ministry’s analysis of the effect of judgments in GLO claims. Findings could bind participating claims under Civil Procedure Rules 1998 rule 19.23, but the individual claims remained highly fact-sensitive. Lead-case findings would therefore be unlikely to dispose of the bulk of the claims, and the binding effect did not weigh heavily in favour of making the order.
5. The court applied the reasoning in Durrheim v Ministry of Defence, where the diversity of noise sources, protective equipment and exposure circumstances limited the utility of evidence from one case in another. The same considerations meant that duplication of investigation and evidence would not necessarily be avoided and that a GLO would impose substantial administrative and costs burdens.
6. A risk of inconsistent decisions, duplicated evidence, or a future flood of trials was not supported by sufficient evidence. The court therefore refused the application, while leaving open a future application if circumstances changed, such as the emergence of widespread County Court litigation or inconsistent Circuit Judge decisions. An application to try selected issues as preliminary issues could also be considered.

The judgment records that an appeal in the same proceedings was allowed by the Divisional Court on 17 May 2023: [2023] EWHC 1475 (KB). The present decision concerned the subsequent application for a Group Litigation Order and dismissed that application.